Tuesday, August 11, 2015

Be very afraid: another court refuses to find irreparable harm despite confusion

Basically, in the Ninth Circuit, you might not be able to
get a preliminary injunction in a trademark case unless the defendant's quality is bad enough to generate complaints to you.

Williams does business as RVMAX, selling used recreational
vehicles (RVs) in Loomis, California. In 2008, Williams registered RVMAX as a
service mark for his business.Defendants do business as RV MAX in Colton, California, selling RVs.(465.5 miles apart, according to Google—one is
relatively close to San Francisco and the other to Los Angeles.)Williams sued for service mark infringement
and false advertising under state and federal law, along with cybersquatting.

Irreparable harm is required for a preliminary injunction;
evidence of such harm could come from “[e]vidence
of loss of control over business reputation and damage to goodwill.” Herb Reed
Enters., LLC v. Fla. Entm’t Mgmt., Inc., 735 F.3d 1239, 1250 (9th Cir. 2013).
But evidence that “simply underscores customer confusion” is not enough; to
accept that would simply collapse likely success with irreparable harm. A
moving party cannot merely produce evidence of “unsupported and conclusory
statements regarding harm [plaintiff] might suffer.”

Williams, unsurprisingly, presented evidence of consumer
confusion such as “calls from customers, vendors, and debtors seeking to reach
Defendants’ dealerships.”He argued that
this confusion inherently risked harm to his goodwill.No (fuzzy) dice.“Plaintiff’s evidence of irreparable harm is
nothing more than a regurgitation of consumer confusion evidence, which is the
exact type of evidence explicitly rejected by the Ninth Circuit in Herb Reed.”The claim that his goodwill could be harmed
by a bad experience with defendants was “pure speculation.”His confusion evidence was “highly relevant”
to likely success on the merits, but “wholly insufficient” for irreparable
harm.

Although the issue on likely success was “quite simple”
here, the court could not reach the merits because Williams failed to show
irreparable harm.

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